Evidence that the employee was clearly aware of the employer’s policy defeats argument that the policy was not set out “in writing”

Evidence that the employee was clearly aware of the employer’s policy defeats argument that the policy was not set out “in writing”

Matter of Osborne (Commissioner of Labor), 2013 NY Slip Op 00370, Appellate Division, Third Department

 The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

The individual had been counseled by his supervisor about having inappropriate relationships in the workplace. Notwithstanding this, he became involved in a relationship and was issued a written disciplinary warning notice at that time, which stated that the relationship was a clear violation of the standards that he was counseled on earlier and that any further infractions in this regard would result in his termination.

Although the individual apparently briefly ended the relationship, it was subsequently resumed and his employment was terminated.

The Appellate Division affirmed the Unemployment Insurance Appeal Board decision disqualifying the individual for unemployment insurance benefits, explaining that "A knowing violation of an employer's established policy or reasonable request may constitute disqualifying misconduct, particularly where, as here, the claimant has received prior warnings about similar behavior."

While the court noted that the employer’s policy in question was not in writing, the individual was clearly aware of the policy as he signed a warning letter affirming his understanding of it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00370.htm

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

The Appellate Division affirmed the dismissal of an Emergency Medical Services Supervisor by the Commissioner of the New York City Fire Department for misconduct, ruling that the Commissioner’s determination that the Supervisor was guilty of violating departmental regulations was supported by substantial evidence.

The EMS Supervisor had admitted photographing a computer terminal’s screen showing confidential and privileged information received during a 911 call concerning a medical emergency, as well as the 911 caller's name, address and telephone number, and then uploading the image to his Facebook account, with the caption "[c]an't make this up."

The decision states that approximately 460 of the Supervior’s Facebook "friends" had access to the posting.

Further, said the Appellate Division, at the time of the posting the EMS Supervisor understood that divulging such patient information was in violation of departmental rules, as well as a serious breach of trust.

Considering the “serious nature” of the Supervisor’s misconduct, the court said that the penalty imposed, dismissal,  did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32 and  Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00437.htm

Equal pay for equal work

Equal pay for equal work
Subway Surface Supervisors Assn. v New York City Tr. Auth., 2013 NY Slip Op 00276, Appellate Division, First Department

In deciding this appeal, the Appellate Division, in a three to two decision, said that Civil Service Law §115 codifies a critical public policy, which is that, "to attract unusual merit and ability to the service of the state of New York, to stimulate higher efficiency among the personnel, to provide skilled leadership in administrative departments, to reward merit and to insure to the people and the taxpayers of the state of New York the highest return in services for the necessary costs of government," there should be "equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service."

In Bertoldi v State of New York, 275 AD2d 227, the Appellate Division, First Department, stated that "[t]he principle of equal pay for equal work need not be applied in all cases under any and all circumstances." The clear implication of that statement, said the court, is that there are circumstances in which the principle of equal pay for equal work must be applied and that “this Court has the power to apply it.”

Further, the Appellate Division explained, “The mere fact that there are no reported cases in which a court has exercised such power does not mean that courts do not have that power.”

While case law establishes that a court need not presume that a disparity in pay is violative of §115, the Appellate Division said a court nevertheless may correct the disparity where "there is palpable discrimination or arbitrary action detrimental to the individual or class," citing Beer v Board of Educ. of City of N.Y., 83 NYS2d 485.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00276.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings

Technical guilty of failing to follow hospital procedure

Recommended penalty: 30-suspension without pay recommended

An ultrasound technician was charged with failing to follow hospital procedures requiring that a patient’s name and medical record number be placed on each image of the patient’s echocardiogram. Without the required identifiers, the reviewing cardiologist could not prepare his report, and the patient had to return to re-take the test.

Though the hospital sought the penalty of termination of employment, Administrative Law Judge Tynia D. Richard recommended a 30-day suspension, noting that the misconduct, while serious, was a single error and caused no harm except inconvenience.

The decision is posted on the Internet at:

Health & Hospitals Corp (Jacobi Medical Ctr.) v. Goldfayn (in PDF), OATH Index No. 2100/12

Employee found guilty of sexually harassing female co-workers

Penalty recommended: termination

Administrative Law Judge Spooner found that a pharmacy technician sexually harassed two female co-workers by forcibly grabbing one from behind and pressing himself against her, and by forcibly kissing the other employee three times. Termination of employment was recommended.

The decision is posted on the Internet at: 

Health & Hospitals Corp (Elmhurst Hospital Ctr.) v. Polepalle (in PDF), OATH Index No. 142/13

Interest arbitration held to contravene public policy insofar as a public entity's being bound to nonmandatory subjects of collective bargaining in negotiating a new agreement

Interest arbitration held to contravene public policy insofar as a public entity's being bound to nonmandatory subjects of collective bargaining in negotiating a new agreement

Niagara Frontier Tr. Metro Sys., Inc. v Amalgamated Tr. Union Local Union 1342,2013 NY Slip Op 00622, Appellate Division, Fourth Department

Supreme Court denied Niagara Frontier Transit Metro System’s petition to stay arbitration in case that involved a labor dispute arising from a collective bargaining agreement [CBA] between the System, a public benefit corporation that provides bus and light rail transit service, and the Amalgamated Transit Union Local Union 1342 (Local 1342), which represents a unit of System’s employees.

Local 1342 had demanded that the terms and conditions of a new CBA be determined by compulsory "interest arbitration." 

The Appellate Division reversed the lower court’s decision and granted the System’s petition.

The Appellate Division explained that “even assuming, arguendo, that the [Collective Bargaining] Agreement entitles Local 1342 to interest arbitration over [the System’s] objection, we would conclude, as we did in ATU,* that such a result ‘contravenes public policy, both by compelling a public entity, which has broad responsibilities to the entire population of the State, to be bound forever to nonmandatory subjects of bargaining, i.e., interest arbitration, and by encumbering its ability to negotiate an entirely new collective bargaining agreement which reflects the changing requirements and mandates of the public interest’"

* Matter of Local Union 1342 of Amalgamated Tr. Union v Niagara Frontier Tr. Metro Sys, 183 AD2d 355, leave to appeal denied, 81 NY2d 710.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00622.htm

A court’s power to vacate an arbitration award is limited

A court’s power to vacate an arbitration award is limited
Professional, Clerical, Tech., Employees Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2013 NY Slip Op 00612, Appellate Division, Fourth Department

The issue before the arbitrator was whether the Board of Education’s selection process used in its filling two vacancies of a newly created title, Assistant Management Analyst, violated the collective bargaining agreement between the parties. The arbitrator concluded that it had not.

Essentially the arbitrator rejected the Association’s argument that the collective bargaining agreement provided that seniority "trumps" a supervisor's discretion in selecting the individual to fill the vacancies in question.

Supreme Court granted the Professional, Clerical, Tech., Employees Assn.’s application to vacate an arbitration award.

The Appellate Division unanimously reversed the lower court’s ruling and granted the Board of Education’s the cross petition seeking to confirm the arbitration award, explaining that Supreme Court erred in vacating the award as the award was not irrational and the arbitrator did not exceed a specific limitation on her authority.*  

Noting that “It is well established that "an arbitrator's rulings, unlike a trial court's, are largely unreviewable," citing Matter of Falzone, 15 NY3d 530, the Appellate Division said that "a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

As the Court of Appeals held in New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326), "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice."

* The Appellate Division also held that Supreme Court erred in determining that the arbitrator impermissibly modified the collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00612.htm